Notice2023-18893
Certain Pillows and Seat Cushions, Components Thereof, and Packaging Thereof
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Published
September 1, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review in part an Initial Determination ("ID") (Order No. 31) of the presiding administrative law judge ("ALJ"), granting a motion for summary determination of violation of section 337 and on review, to vacate part of the ID and to take no position on certain findings in the ID. The Commission requests written submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below.
Full Text
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<title>Federal Register, Volume 88 Issue 169 (Friday, September 1, 2023)</title>
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[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Notices]
[Pages 60491-60494]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18893]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1328]
Certain Pillows and Seat Cushions, Components Thereof, and
Packaging Thereof
Notice of a Commission Determination To Review in Part an Initial
Determination Granting Complainant's Motion for Summary Determination
of Violation of Section 337 and on Review, To Vacate Part of the
Initial Determination; Request for Written Submissions on Remedy, the
Public Interest, and Bonding
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part an Initial
Determination (``ID'') (Order No. 31) of the presiding administrative
law judge (``ALJ''), granting a motion for summary determination of
violation of section 337 and on review, to vacate part of the ID and to
take no position on certain findings in the ID. The Commission requests
written submissions from the parties, interested government agencies,
and other interested persons on the
[[Page 60492]]
issues of remedy, the public interest, and bonding, under the schedule
set forth below.
FOR FURTHER INFORMATION CONTACT: Edward S. Jou, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3316. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#99dcddd0caaad1fcf5e9d9eceaf0edfab7fef6ef"><span class="__cf_email__" data-cfemail="0f4a4b465c3c476a637f4f7a7c667b6c21686079">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD terminal
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on September 13, 2022, based on a complaint (the ``Complaint'') filed
by Purple Innovation, LLC of Lehi, Utah (the ``Complainant''). 87 FR
56086-88 (Sept. 13, 2022). The Complaint alleges violations of section
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon
the importation, the sale for importation, or sale within the United
States after importation of certain pillows and seat cushions,
components thereof, and packaging thereof by reason of infringement of
the sole claim of U.S. Design Patent No. D909,092 (``the D'092
patent''); claims 1-16, 18, 19, 21-33, and 35 of U.S. Patent No.
10,772,445 (``the '445 patent''); claims 1-4, 6, 10-12, 19, and 20 of
U.S. Patent No. 10,863,837 (``the '837 patent''); U.S. Trademark
Registration No. 5,661,556 (``the '556 mark''); and U.S. Trademark
Registration No. 6,551,053 (``the '053 mark''). Id. at 56086-87. The
Complaint further alleges the existence of a domestic industry. Id. The
Complaint also alleges violations of section 337 in the importation
into the United States, or sale of certain products identified above by
reason of trade dress infringement, the threat or effect of which is to
destroy or substantially injure an industry in the United States. Id.
The Commission's notice of investigation names 41 respondents:
Bedmate-U Co., Ltd. (``Bedmate-U'') of Gyeonggi-do, Korea; Chuang Fan
Handicraft Co., Ltd. of Zhejiang, China; Dongguan Bounce Technology
Co., Ltd. of Guangdong, China; Dongguan Jingrui Silicone Technology
Co., Ltd. (``Dongguan Jingrui'') of Guangdong, China; Foshan Dirani
Design Furniture Co., Ltd. (``Dirani Design'') of Guangdong, China;
Global Ocean Trading Co., Ltd. of Guangdong, China; Guang An Shi Lin
Chen Zai Sheng Wuzi Co., Ltd. of Zhejiang, China; Guang Zhou Wen Jie
Shang Mao Youxian Gongsi Co., Ltd. of Shanghai, China; Guangzhou
Epsilon Import and Export Co., Ltd. of Guangdong, China; Guangzhoushi
Baixiangguo Keji Youxian Gongsi Co., Ltd. of Guangdong, China;
Haircrafters LLC of Chattanooga, TN; Hangzhou Lishang Import & Export
Co., Ltd. of Zhejiang, China; Hangzhou Lydia Sports Goods Co., Ltd.
(``Hangzhou Lydia'') of Zhejiang, China; Hebei Zeyong Technology Co.,
Ltd. of Hebei, China; Henson Holdings, LLC (``Henson Holdings'') of
Lafayette, Louisiana; Hetaibao of Anhui, China; Hubei Sheng Bingyi
Dianzi Keji Youxian Gongsi Co., Ltd. of Hubei, China; Kaifeng Shi Long
Ting Qu Chen Yi of Henan, China; Lankao Junchang Electronic Commerce
Co., Ltd. of Henan, China; Lei Lei Wang of Anhui, China; Liu Lin Xian
Xu Bin Dian Zi Chan Pin Dian of Shanxi, China; Nanchang Shirong Bao Er
Guanggao Youxian Gongsi Co., Ltd. of Jiangxi, China; Ningbo Bolian
Import & Export Co., Ltd. (``Ningbo Bolian'') of Beijing China; Ningbo
Minzhou Import & Export Co., Ltd. (``Ningbo Minzhou'') of Beijing,
China; Ruian Xiu Yuan Guoji MaoYi Youxian Gongso Co., Ltd. of Zhejiang,
China; Shandong Jiu Hui Xinxi Keji Youxian Gongsi Co., Ltd.
(``Shangdong Jiu Hui'') of Shandong, China; Shanxi Chao Ma Xun Keji
Youxian Gongsi Co., Ltd. of Shanxi, China; Shenzhen Baibaikang
Technology Co., Ltd. of Guangdong, China; Shenzhen Leadfar Industry
Co., Ltd. (``Shenzhen Leadfar'') of Guangdong, China; Shenzhen Shi Mai
Rui Ke Dianzi Shangwu Co., Ltd. of Guangdong, China; Shenzhen Shi Xin
Shangpin Dianzi Shangwu Youxian Gongsi Co., Ltd. (``Shenzhen Shi Xin'')
of Guangdong, China; Shenzhen Shi Yan Huang Chu Hai Keji Youxian Gongsi
Co., Ltd. of Guangdong, China; Shenzhen Shi Yuxiang Meirong Yongju of
Guangdong, China; Shenzhen Tianrun Material Co., Ltd. of Guangdong,
China; Wuhan Chenkuxuan Technology Co., Ltd. of Hubei, China; Xiao
Dawei of Fujian, China; Xiao Xiao Pi Fa Shang Mao You Xian Ze Ren
Gongsi Co. of Shanxi, China; YaRu Wang of Shanxi, China; Yiwu Youru E-
commerce Co., Ltd. of Zhejiang, China; Zhejiang Xinhui Import & Export
Co., Ltd. of Zhejiang, China; and Zhou Meng Bo of Guangdong, China. Id.
at 56087-88. The Office of Unfair Import Investigations (``OUII'') is
also a party to this investigation. Id. at 56088.
Five respondents were terminated by withdrawal of allegations in
the Complaint pursuant to Order No. 15 (Jan. 10, 2023), unreviewed by
Comm'n Notice (Feb. 8, 2023). Twenty-five additional respondents were
terminated by withdrawal of allegations in the Complaint pursuant to
Order No. 19 (Feb. 16, 2023), unreviewed by Comm'n Notice (Mar. 20,
2023), reconsidered in part by Comm'n Notice (May 19, 2023).
Complainant also withdrew its allegations with respect to trade dress,
the '556 mark, and the D'092 patent pursuant to Order No. 19. Id. Seven
additional respondents were terminated by consent order pursuant to
Order No. 23 (Mar. 30, 2023) (Shenzhen Shi Xin), Order No. 24 (Apr. 3,
2023) (Bedmate-U), Order No. 25 (Apr. 7, 2023) (Henson Holdings), Order
No. 26 (Apr. 10, 2023) (Ningbo Minzhou), Order No. 27 (Apr. 12, 2023)
(Lei Lei Wang), Order No. 28 (Apr. 13, 2023) (Hetaibao), and Order No.
29 (May 10, 2023) (Ningbo Bolian), unreviewed by Comm'n Notice (May 19,
2023).
Dirani Design, Dongguan Jingrui, Hangzhou Lydia, and Shenzhen
Leadfar (collectively, the ``Defaulting Respondents'') were found in
default pursuant to Order No. 16 (Jan. 11, 2023), unreviewed by Comm'n
Notice (Feb. 8, 2023), and Order No. 21 (Mar. 8, 2023), unreviewed by
Comm'n Notice (Mar. 30, 2023).
On March 15, 2023, Complainant filed a motion for summary
determination of violation with respect to infringement of certain
claims of the '837 patent and the '445 patent by the Defaulting
Respondents. On March 29, 2023, OUII filed a response in support of the
motion.
On July 13, 2023, the ALJ granted Complainant's motion in an
Initial Determination and issued a Recommended Determination on Remedy
and Bond (Order No. 31, the ``ID'' and ``RD''). The ID finds a
violation of section 337 by reason of infringement of certain claims of
the '445 patent by Dongguan Jingrui, Hangzhou Lydia, and Shenzhen
Leadfar. The ALJ notes that ``a finding of violation as to Dirani
Design is unnecessary because Purple seeks only a limited exclusion
order.'' RD at 50. The RD recommends that a limited exclusion order
issue with respect to the products of Dirani Design accused of
infringing certain claims of the '837 patent and that a general
exclusion order issue with respect to articles that infringe certain
claims of the '445 patent. The RD further recommends that cease and
desist orders issue with
[[Page 60493]]
respect to each of the Defaulting Respondents and that a 100% bond be
set during Presidential review.
No petitions for review of the ID were filed.
The Commission has determined to review the ID in part to address
(i) the ID's consideration of the alleged indefiniteness of the term
``threshold pressure level'' and (ii) the ID's findings with respect to
the significance of domestic industry investments.
On review, the Commission has determined to vacate the ID's
consideration of the alleged indefiniteness of the term ``threshold
pressure level.'' ID at 28-33. Consistent with Lannom Mfg. Co. v. U.S.
Int'l Trade Comm'n, 799 F.2d 1579 (Fed. Cir. 1986), the Commission
declines to address invalidity arguments raised solely by a party that
has been terminated from the investigation before invalidity is
decided. See id. at 1579-80 (``Congress did not authorize the
Commission to redetermine patent validity when no defense of invalidity
has been raised.''); see also Certain Toner Cartridges and Components
Thereof, Inv. No. 337-TA-918, Initial Determination at 68-69 (May 12,
2015) (declining to address indefiniteness arguments raised by
terminated respondents), unreviewed in relevant part by Comm'n Notice
(Jun. 24, 2015). The Commission affirms the ID's finding that no
construction of the term ``threshold pressure level'' is necessary as
the surrounding claim language already defines the term as the pressure
at which the claimed ``deformable wall members'' are ``configured to
buckle.'' ID at 33-34.
With respect to the economic prong of the domestic industry
requirement, the Commission takes no position with respect to the ID's
finding that the investments are ``quantitatively significant in
absolute terms.'' ID at 45.<SUP>1 2</SUP> The Commission affirms the
ID's finding that Complainant's domestic investments in plant and
equipment and employment of labor and capital are significant. Id. at
45-47.
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\1\ Commissioner Kearns and Commissioner Stayin also take no
position on the ID's comparisons of Complainant's allocated domestic
expenditures on manufacturing and R&D relating to the domestic
industry product to department-wide expenditures related to the
domestic industry products. See ID at 46.
\2\ Commissioner Karpel would adopt the ID's analysis of the
economic prong of the domestic industry requirement. ID at 38-47.
The ID identifies in numerical terms the particular investments that
are claimed by Purple with respect to the articles protected by the
`445 patent and notes that Purple's investments within these
statutory categories ``are quantitatively significant in absolute
terms.'' ID at 45-46. The ID then reviews the significance of these
investments in context, comparing them to total manufacturing and
R&D expenditures for the DI product, Purple's overall U.S.
expenditures on its DI products, and its revenues from sales of
these products and finds these indicia show the investments to be
quantitatively significant. Id. at 46-47. The ID's approach is
consistent with the Commission's practice to review the asserted
investments in numerical terms and then review those investments in
the context of the company's operations, the marketplace, or the
industry in question. Therefore, Commissioner Karpel would affirm
the ID's domestic industry economic prong analysis in its entirety.
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The Commission has determined not to review the remainder of the
ID, including the determination that there is a violation of section
337 by reason of infringement of certain claims of the '445 patent by
Dongguan Jingrui, Hangzhou Lydia, and Shenzhen Leadfar.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States; and/or (2) cease and desist orders that could result
in the respondent being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op.
at 7-10 (Dec. 1994).
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order and
cease and desist orders would have on: (1) the public health and
welfare, (2) competitive conditions in the U.S. economy, (3) U.S.
production of articles that are like or directly competitive with those
that are subject to investigation, and (4) U.S. consumers. The
Commission is therefore interested in receiving written submissions
that address the aforementioned public interest factors in the context
of this investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
Presidential Memorandum of July 21, 2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles would be entitled to enter the
United States under bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to provide the HTSUS subheadings under
which the accused products are imported, and to supply the
identification information for all known importers of the products at
issue in this investigation. The initial written submissions and
proposed remedial orders must be filed no later than close of business
on September 11, 2023. Reply submissions must be filed no later than
the close of business on September 18, 2023. No further submissions on
these issues will be permitted unless otherwise ordered by the
Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1328'') in a prominent place on
the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). Persons with questions regarding
filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. Any non-
party
[[Page 60494]]
wishing to submit comments containing confidential information must
serve those comments on the parties to the investigation pursuant to
the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed simultaneously
with any confidential filing and must be served in accordance with
Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this investigation may be disclosed to and
used: (i) by the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel, solely for cybersecurity
purposes. All contract personnel will sign appropriate nondisclosure
agreements. All nonconfidential written submissions will be available
for public inspection on EDIS.
The Commission vote for this determination took place on August 28,
2023.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the
Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Issued: August 28, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-18893 Filed 8-31-23; 8:45 am]
BILLING CODE 7020-02-P
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